Episode #70: Traumatic Brain Injury Cases

Rick Joslin, Attorney with Collins Einhorn Farrell, talks to Dr. Steve Wood about Traumatic Brain Injury cases and some of the considerations when managing these types of cases. Rick and Steve discuss the challenges in defending traumatic brain injury cases which aren’t always as visible as a physical injury and how the plaintiff’s bar uses neuropsychological testing in making their case. Rick shares some of the approaches he has taken to be successful in defending traumatic brain injury cases and highlights and explains the importance of obtaining specific types of records early in the process including medical records, high school records, plus EMS records and emergency department records. Lastly, Rick and Steve talk about how a diagnosis of a traumatic brain injury is derived and how well jurors understand these types of traumatic brain injury cases in order to deliberate and arrive at their verdict.

Full Episode Transcript

[00:05] Steve Welcome to Litigation Psychology Podcast, brought to you by Courtroom Sciences Inc. I’m Dr. Steve Wood, and on the podcast we’ve talked a lot about nuclear verdicts, we’ve talked a lot about reptile theory, we’ve talked a lot about these things and how it’s had an impact on verdicts. And one of the cases we haven’t really—or case types we haven’t really talked much about—that it leads to a lot of these large dollar verdicts that I’ve seen both worked on and seen in the newspaper are traumatic brain injuries. And today to talk to me about how his thoughts on traumatic brain injuries, how to defend him, what he sees, is Rick Joslin of Collins, Einhorn, and Farrell. Rick, how are you? Thanks for joining the podcast.

[00:45] Rick Oh, thanks for having me, Steve. Doing well.

[00:47] Steve Good. So as I normally do before we kind of launch into our discussion, kind of give the viewers an idea of your area of expertise and what you do is in the law as it relates to traumatic brain injuries.

[00:59] Rick Sure. Um, I’ve been a practicing attorney now for uh 29 plus years in the state of Michigan. Uh, the last 21 of which I’ve been here at Collins, Einhorn, Farrell in Southfield, Michigan, where we—firm—it has a basically an insurance defense practice. We’re retained by insurance carriers to represent their insureds in a wide range of matters. My practice is focused almost exclusively since the start as a practical matter on professional liability. I do a, I have a large medical malpractice practice and also defend other health care, you know, professionals as well. But I also have uh something of a sub-specialty in regard to uh trucking litigation and where we end up do seeing a lot of these, you know, traumatic brain injury cases arise. Plus, you’ll see a lot of brain injury type cases in the medical malpractice side.

[02:00] Steve Yes. So you’re talking about how you kind of got a wide breadth of experience across various different types of cases. And you know, I think at least from my opinion, I would say that traumatic brain injury cases seem to be the ones that are a little bit more difficult to defend or a little bit more difficult to work up in in a case perspective. Do you find that to be the case, or do you find that they’re they’re pretty similar across the board?

[02:24] Rick No, I think, you know, they’re different and they are more difficult in that the potential for a a bad verdict is much higher, I think, in a traumatic brain injury case than many other kinds of cases because of the nature of the injury. The—you have a significant, usually past economic damage component of lost wages, expenses for medical care, etc. And then many times you’re looking at long-term future care, future costs for the plaintiff in those cases, which raises the economic stakes as far as a verdict. Not to mention that you have the non-economic damage component, the pain and suffering component of those cases which can be profound depending upon the age of the patient and the severity of the injury. And so those cases pose a special risk to, you know, the defense side and certainly raise the eyebrows and attention of insurance carriers as they’re they’re looking at these cases and defending them.

[03:34] Steve I think one of the other things that makes them more difficult as well is because I’ve always felt like you’re—you’re kind of working an uphill battle against the plaintiff because if you think about it, a lot of times in a med-mal case you may have—you have an injury, right? If someone has their—I’ve seen before—or someone had their wrong leg amputated, right? That’s something that’s visible, something that you can see. Or if you’ve had other injuries where someone is now a paraplegic or a quadriplegic, those are really visible injuries that you see. And a lot of times with some of these traumatic brain injuries, they’re not—you can’t see them, right? There—they’re quote-unquote invisible injuries because you know, without going really any going into and doing um fMRIs or see—you know, CAT scans or anything like that, it’s really hard to get to look at the brain. And even then, I know a lot of times plaintiff counsel will present and say just because you can’t see it on an x-ray, you can’t see on an imaging picture, then that doesn’t necessarily mean it doesn’t exist. So can you talk to that a little bit more about kind of your experience as far as you feel that it’s really a difficult case because you’re dealing with injuries that sometimes could be not viewed or not visible from the human eye?

[04:44] Rick Well, that’s—yeah, you hit the nail on the head. That that’s a a difficulty you have in defending it is that oftentimes as defense counsel we’re not brought in until, you know, a year or two years even after the initial injury. And so what happens is is that diagnosis, to the extent it ever gets made by a treating physician, gets into that record. And once it gets into that record, it’s very hard to get it out. Um, subsequent treating physicians see that from a prior treater and that goes into the record history of traumatic brain injury. And so you really have to go back and dig into that and it becomes, you know, the historical record that you have to to overcome. Not to mention by the time we get involved, often not only has the plaintiff had a long subsequent treating history, but also if he’s been represented by counsel many times, they’ll have sent him out for additional tests and you know, neuropsychological examination to another neurologist perhaps to get opinions and solidify that diagnosis before we can even get in and discuss its validity.

And then the second component is just as you said, which is traumatic brain injury cases often show no objective signs, at least in terms of imaging studies. I could talk about maybe a little bit later with you know, an example or two of when imaging studies have been helpful, but uh oftentimes that diagnosis is made without an objective sign on an imaging studies. Now sometimes you have uh EEG findings or things of that nature that you can then look back on and use both for the plaintiff and for the defense obviously, but um they’re difficult because most of the signs and symptoms of a traumatic brain injury are difficult to verify. The complaints of headaches, the complaints of memory loss, complaints of just not feeling myself—it’s hard as a defense attorney to say “no, you don’t have a headache.” It’s very difficult to do. So you have to take other steps and approach them differently as a result.

[07:01] Steve And I think you bring up a good point as well and where that makes it difficult is that I know that some plaintiff attorneys will use this really to their advantage in as far as not having a lot of because if you even have—even if you have something a CTE or a CAT scan, excuse me, that that doesn’t show any sort of brain injury, they just gloss over it. Or I’ve also seen that a lot of times they prefer to use “traumatic brain damage” rather than “traumatic brain injury” because the thought being that an injury is something you can recover from, traumatic brain damage is something you don’t recover from. If you think about any sort of damage to your vehicle or damage to your home, that’s something that occurs that needs to be repaired versus an injury that will just heal itself over time. Have—can you talk a little bit about anything that you’ve seen that the plaintiff’s bar has been using? Because like I said, I know they’ve been trying to get a lot more creative in the ways they present—present traumatic brain injuries as far as their approaches to the Glasgow Coma Score or whether how they’re approaching it with the, you know, whether or not they lost consciousness—a lot of different other things. Can you speak to any of those that the plaintiff’s bar has been using?

[08:14] Rick Sure. The biggest thing that we see by far is neuropsychological testing. The plaintiffs’ bar will often refer plaintiffs and their clients out to a psychologist, usually to perform neuropsychological testing on their client. And then once that testing is done, you know, they often reach a diagnosis of traumatic brain injury. Uh, the reports, I’m sure as you’ve seen, are long and detailed and thick. And again, that diagnosis then becomes entrenched and that neuropsychological testing takes on the aura and perception of a diagnosis so that now we have a concrete diagnosis, we have some sort of test, the diagnosis—this man has an injury, this woman has an injury—and now we’re stuck with it. Um, other tests I don’t think they use nearly as often because of the idea that, you know, there are no MRI findings or CT scan findings—maybe the EEGs are negative—but yet, you know, there is evidence out there to suggest that these types of injuries and residual deficits, which is really what the plaintiffs want to focus on—can be had without seeing it on a scan or seeing it on a test.

[09:43] Steve Yeah. So you know, let’s—i know and you don’t usually work on it and you actually said you know you work exclusively on the defense side on traumatic brain injury cases. Can you talk a little bit about kind of approaches that you’ve taken with an understanding kind of where plaintiff bar is going, and then what are some approaches that you’ve taken that you’ve found to to be successful in actually defending these cases?

[10:06] Rick Yeah, I think that’s—you know, the first thing is really that you have to take this seriously from the start. You can’t be cavalier at any time in the workup of the case with a diagnosis of, you know, traumatic brain injury. Once that’s in a record somewhere, once that’s an allegation being made by the plaintiff, you can’t just put it aside and hope that it goes away. You have to work it up and you have to work it up aggressively, which means, you know, retaining appropriate experts and obtaining appropriate investigators to to begin that workup.

If you’re asking kind of, you know, what steps do we take on our end, the first thing when you have a traumatic brain injury is records. We need to get as many records as much records as we can related to the point of—not just medical records, but possibly the most important record that we can get in these cases is his high school records or her high school records. Because oftentimes the high school record is going to be the only place where we can find any kind of psychological testing, any type of IQ testing that’s ever been done on this individual. And because the problem in defending the cases is always—we don’t—most of the time we don’t have a in which to judge whether or not this individual really has any significant deficits. And so we try to find that baseline and we do it through high school records. Oftentimes somebody took an IQ test in ninth grade um and now maybe we can use that and compare it to findings that were then made on a neuropsychological examination that was done at the request to the plaintiff.

We get work records. We—we get work records from high school right up to and through the date of injury because we’re looking for instances of, you know, anger, inability to concentrate things—those kinds of symptoms that the plaintiffs will often report that may have existed prior to the injury. Obviously, we’re looking at medical records—have they had prior instances of brain injury, have they had prior strokes, have they had other diseases or causes that might now account for the symptoms that they’re reporting uh at this end. Um, and so we—we try to go back as far as we can. We get the insurance company records as far back as we can, because oftentimes plaintiffs, you know, forget where they were treated, where they have been seen over the years, but insurance companies have a long institutional memory and you can track down treating physicians and treating hospitals and tests that were done by use of their insurance company records who paid for those—those tests.

The key records really are in an injury case, at least is—are the EMS records and the emergency department records, because it’s there that you’ll get the most reporting about symptoms that immediately follow the incident, especially if it’s some type of uh auto accident or other traumatic single incident which they’re claiming led to this injury. So what we’ll see in those, you know, what we’re looking for in those records are um was there a loss of consciousness, was there a uh reported striking one’s head, was there a point—a report of loss of memory of the event or loss of memory in general? Because it’s those things that actually make the diagnosis.

[13:52] Steve That’s actually one thing I wanted to to bring up to us when we talk about from the plaintiffs’ bar perspective that I know those are a few things that they’ve brought up in their discussions about, you know, basically how you’re using it to use to defend your case. And I think one of the things I’d be interested to hear you talk about is that, you know, the thought being that sometimes plaintiffs don’t actually know if they’ve lost consciousness. So if they say they did, they don’t necessarily know whether or not they did, so that can’t be a good marker to show that, you know, they actually did lost consciousness because they don’t know any better.

And then the other thing to your point when you’re talking about a head strike, the argument being that you don’t necessarily need to have a head strike in order to have a traumatic brain injury because if you think about it, the brain just shakes inside the skull without actually having some sort of impact to it. You know, just having some sort of you know, quick jerking motions would cause it enough to move around within the fluid inside the brain and have it hit up against the skull. What are your thoughts on that or can you speak to that at all about kind of what you think as that approach goes?

[14:56] Rick Yeah, that’s—that—that’s the argument they make is well you don’t need to have—have this—you can have a—you don’t need to have a strike of the head, you can have this—they talk about contrecoup injuries and things of that nature. The easy response to that is is that you can also have—you don’t have to have a strike of the head, you don’t have to have—even if you have a strike at the head or even if you have the shaking of the head, you don’t necessarily have a traumatic brain injury. The brain is a remarkable vessel—the human body is designed, in fact, to take that shaking. That’s what the bag of jelly, so to speak, around the brain is there for.

And so what we do in those cases is when we hear those types of arguments is when we depose either the plaintiff’s treating physician or the plaintiff’s expert witnesses, we ask them very specifically: “Are you familiar with the criteria of the American Board of Neurology for diagnosing a traumatic brain injury?” And the American Board of Neurology has very specific criteria for reaching that diagnosis. And to reach that diagnosis you have to have either: One, decreased level of consciousness after injury. Somebody needs to—did you lose consciousness? Um, if you didn’t lose consciousness, did you have a loss of memory or loss of memory of the event? If you didn’t have that, did you have an alteration in mental status? Were you acting weird, talking and, you know, speaking in tongues, was not making any sense when talking to a coworker. Or did you have some sort of neurological—measurable neurological deficit? Your cranial nerves weren’t intact, you couldn’t touch your nose, you know, to your finger—some type of neurological deficit that was measurable at the time.

If you don’t have one of those four criteria, then by definition at the time you do not have a traumatic brain injury. And so that’s where we go back to try and undermine that diagnosis that gets tossed out somewhere in the medical records along the way that says “traumatic brain injury.” Well then talk to that position—you weren’t there at the ER, where you didn’t see that position, you didn’t see the patient at that time. Let me show you this record—here’s what it says about one, two, three, and four. Here’s what the criteria is. You would agree that this patient does not meet the criteria of a traumatic brain injury based on the American Board of Neurology? And in the same criteria is used by the Veterans Administration in uh head injury cases arising out of CTEs because of roadside IEDs, I’m sorry. Because they have so much experience in that, they use virtually the same criteria. And that’s a powerful tool when you’re talking to a witness as to, well here’s what our soldiers—here’s what, you know, our doctors are using on our soldiers to diagnose what’s a known and obvious problem. And so that’s how we—we begin to attack that diagnosis that gets embedded in the record and then just cheerfully continue that.

[18:18] Steve Yeah. So have you—I know and a lot of this is very medical heavy. Have you found at all when working with with jurors that jurors get the medicine, or is it really a struggle in order to try to get jurors to understand the medicine and understand all the different concepts that go along with trying to understand the traumatic brain injury case which is a lot different than say another type of case?

[18:38] Rick Actually, I think in some respects it’s a little bit easier because you’re not talking about, you know, what’s the defining—a subtle finding of on a MRI scan or a, you know, a fracture line on a tibia or something like that. You’re talking about things the jurors can understand themselves: a loss of consciousness, a loss of memory, um an inability to communicate suddenly. So you’re talking about things that jurors are readily aware of. And then in terms of other testing like EEGs, you know, you—you have to educate them a little bit but really you make it simple, which is this measures brain waves. People understand that. And using these brain waves we can make decisions about what’s normal and what’s not based upon a wide range of symptoms. And so where you then begin to have some fun, at least in terms of the defense side, is that when you get into the discussing with the neuropsychologist the results of the neuropsychological testing, um there’s—there’s fertile ground to be had when cross-examining an expert regarding um their neuropsychological testing that was done on the plaintiff and what um what those results really are and what they mean.

[20:02] Steve Interesting, yeah. Um, yeah a lot of fun to to participate when we’ve done mock trials or working with this and traumatic brain injury cases because like I said, they’re very complex and and there’s a a lot of different kind of gray areas in there that you said to try to bring forward and highlight. So Rick, I appreciate you taking the time out to talk to us about these types of cases. If people want to get a hold of you, how can they get a hold of you—if they have any more questions, if they want to talk to you more about traumatic brain injury cases, how do they get ahold of you?

[20:31] Rick Yep, uh you can get a hold of us by email. Uh, it’s just richard.joslin@ceflawyers.com—probably the easiest way to reach me. Or through our phone: 248-355-4141.

[20:44] Steve All right, Rick. Thank you. Steve Wood—if you need to get a hold of me, you can contact me at swood@courtroomsciences.com. Make sure to go to our website at courtroomsciences.com—you can find all of our podcasts, blogs, articles, all the things we’ve written, anything related to Courtroom Sciences. This has been another edition of the Litigation Psychology Podcast. Thanks for joining and thanks for listening. Bye.